Social Media IP Risks for Brands: What Business Owners Need to Know

Social media is one of the most powerful tools available for building a brand. It allows businesses to reach new audiences, build communities and put their products in front of customers in ways that would have been difficult — or prohibitively expensive — not that long ago.

But it has also changed who controls your brand.

Your logo, business name, photographs, videos and other brand assets might now be used by employees, marketing agencies, influencers, brand ambassadors and customers — sometimes all at once.

And every one of those interactions creates potential intellectual property risks.

Registering a trade mark is an important part of protecting a brand, but it isn't the end of the story. Businesses also need to think about how their brand is actually being used online.

1. Is everyone using the same brand?

One of the less obvious risks of social media is inconsistent brand use.

Your registered trade mark might be OCEAN HARVEST, but your marketing team uses OceanHarvest, an influencer shortens it to Ocean, and customers start using a campaign hashtag instead.

From a marketing perspective, those variations might seem harmless. From an IP perspective, they can matter.

A trade mark is intended to distinguish your goods or services from those of other businesses. Consistent use helps reinforce that function and builds recognition around the mark you have actually protected.

Problems can arise where the brand a business has registered and the brand it actually uses begin to drift apart.

This is particularly important when a business refreshes its branding. If your logo, name or tagline has evolved substantially since your trade marks were registered, it may be worth reviewing whether your registrations still protect what customers actually see.

2. Influencers need brand rules too

Influencer arrangements can introduce another layer of risk.

Influencers are generally engaged because they have their own style, voice and audience. Giving them some creative freedom is often the entire point.

But creative freedom doesn't necessarily mean unrestricted use of your intellectual property.

An influencer might:

• alter your logo to fit their aesthetic;
• change its colours or proportions;
• shorten or modify your brand name;
• incorporate your trade mark into their own graphics;
• use your branding alongside another business's products; or
• continue using your brand after the commercial relationship has ended.

A good influencer agreement should therefore do more than specify the number of posts, platforms and payment.

It should also deal with how your intellectual property can be used.

Depending on the arrangement, that might include approved brand assets, restrictions on modifying them, content approval processes, the duration of the licence and what happens to branded content when the relationship ends.

3. What happens when an influencer behaves badly?

There is another risk that sits somewhere between intellectual property and reputation management.

When a business engages an influencer or brand ambassador, it is deliberately creating an association between that person and the brand.

Usually, that's exactly what the business wants.

Until it isn't.

An influencer may make offensive comments, become involved in a public controversy, promote a competitor unexpectedly or behave in a way that is fundamentally inconsistent with the values of the business.

The legal issue then becomes: how quickly can you end the association?

Well-drafted influencer and ambassador agreements should consider termination rights for conduct that may materially damage the brand's reputation, together with practical provisions dealing with what happens afterwards.

For example, can the business require branded content to be removed? When does the influencer's right to use the logo end? What happens to content that the business has already reposted?

These issues are much easier to address when everyone agrees on the rules before something goes wrong.

4. Who owns the content your influencers create?

This is another area where assumptions can be dangerous.

Paying someone to create a photograph, video, graphic or other piece of content does not automatically answer every question about who owns the copyright or how the content can be used.

Your agreement should make clear what rights the business is receiving.

Does the business own the content outright?

Or does the influencer retain ownership and grant the business a licence?

If it is a licence, where can the content be used? For how long? Can it be used in paid advertising, on the website, in email campaigns or in printed material?

A business that pays for an influencer campaign may assume it can use the resulting content indefinitely across all of its marketing channels. The contract may tell a very different story.

5. Reposting customer content isn't automatically risk-free

User-generated content can be enormously valuable.

A customer posts a great photograph of your product. They tag your business. You repost it to your Instagram account.

It feels like an ordinary part of social media.

But tagging a business does not necessarily mean the creator has given the business unrestricted permission to use their photograph commercially.

Copyright usually arises automatically when original content is created. There may also be additional complications if someone other than the person posting the image actually took the photograph.

The risk increases when user-generated content moves beyond a simple social media repost and starts appearing in:

• paid advertisements;
• website banners;
• email campaigns;
• product packaging; or
• other commercial marketing material.

If customer content is valuable enough that you want to use it in your marketing, make sure you have the appropriate permission to do so.

6. Be careful what your team reposts

The same principle applies more broadly to content found online.

An image being publicly available on Instagram, TikTok, Pinterest or another platform does not mean it is free for a business to use.

Marketing teams working at the speed of social media can easily copy photographs, graphics, memes, music or video clips without stopping to ask who owns them.

Businesses should have a clear process for sourcing third-party content and confirming that they have the necessary rights before publishing it.

7. Hashtags can become valuable brand assets

Hashtags are often treated as purely marketing tools, but some can develop considerable brand recognition.

If your business creates a distinctive campaign phrase or hashtag that customers begin associating strongly with your products or services, it may be worth considering whether it should form part of your broader trade mark strategy.

The reverse is also important.

Before launching a major hashtag campaign, check whether someone else is already using or protecting the phrase.

A successful campaign is not the ideal time to discover that the hashtag at the centre of it belongs to somebody else.

8. Social media makes infringement easier to find — and easier to commit

There is one advantage to so much brand activity happening publicly: infringement can sometimes be easier to detect.

Competitors, counterfeiters and unrelated businesses may use your:

• business name;
• logo;
• product photographs;
• videos;
• packaging;
• slogans; or
• other distinctive brand elements.

Regular monitoring can help identify these issues early.

That doesn't mean every similar Instagram post requires a legal response. The appropriate action depends on what rights you hold, what the other party is doing and the commercial significance of the conduct.

But businesses are generally in a better position when they identify potentially problematic use early rather than discovering years later that another business has built its own reputation around something very similar.

Protecting your brand on social media

Social media IP risk doesn't require businesses to tightly control every post or remove all creativity from their marketing.

It requires clear boundaries.

For most businesses, that means:

• using registered trade marks consistently;
• reviewing whether existing registrations still reflect the current brand;
• providing brand guidelines to employees, agencies and influencers;
• dealing properly with IP ownership and licensing in influencer agreements;
• having appropriate termination provisions for ambassadors and influencers;
• obtaining permission before commercially reusing customer content;
• checking rights before reposting third-party material; and
• monitoring how important brand assets are being used online.

The bigger your brand becomes, the more people will interact with it.

That is a good problem to have — provided you retain enough control over your intellectual property to protect what you've built.

Is your IP actually protected?

If you're not sure what intellectual property your business owns, who owns it, or whether there are gaps in your current protection, you can start with my free IP Risk and Ownership Audit.

Visit www.elisesteegstra.com to access the audit and find more practical resources about intellectual property and brand protection.

You can also listen to the accompanying episode of Elise Explains IP: Social Media IP Risks for Brands wherever you listen to podcasts.

Disclaimer: This article is intended for general educational purposes only and does not constitute legal advice. You should obtain advice tailored to your circumstances before acting on any information discussed in this article.